L v The Queen - [2006] NZSC 18

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IN THE SUPREME COURT OF NEW ZEALAND

SC 49/2005 [2006] NZSC 18

L

v

THE QUEEN

Hearing: 14 December 2005
Court: Elias CJ, Blanchard, Tipping, McGrath and Henry JJ Counsel: P J Davey for Appellant
J C Pike and B J Horsley for Crown

Judgment: 30 March 2006

JUDGMENT OF THE COURT

A. The appeal against the conviction for attempted sexual violation is allowed and that conviction is set aside. There is to be no retrial on that count.

B.The appeal against the conviction for sexual violation is dismissed.

C. The case is remitted to the Court of Appeal to reassess the appropriate sentence for the offence of sexual violation in the light of the setting aside of the conviction for attempted sexual violation.

L v R SC 49/2005 [30 March 2006]

REASONS

Para No

Elias CJ, Blanchard, Tipping and McGrath JJ [1] Henry J [43]

ELIAS CJ, BLANCHARD, TIPPING AND McGRATH JJ

(Given by Tipping J)

[1] The appellant, a 49 year old woman, was found guilty of attempted sexual violation of a 15 year old male. She was also found guilty of sexual violation of the same complainant on a separate occasion.1 Her appeal against these convictions was dismissed by the Court of Appeal. The Solicitor-General’s application for leave to appeal against the total sentence of four and a half years imprisonment was granted, and the Court of Appeal increased the total sentence to five and a half years.2

[2] The appellant was granted leave to appeal to this Court against the attempt conviction on grounds relating to the legal ingredients of the crime of attempted sexual violation and the way in which the Judge directed the jury on that topic. We have come to the conclusion that the conviction for attempted sexual violation should be set aside and that no re-trial should be ordered on that count. It is proper to note that the Crown did not, in the circumstances, seek a re-trial if this Court was of the view that the attempt conviction should be set aside. We do not, however, consider the setting aside of the conviction for attempted sexual violation requires the conviction for sexual violation to be set aside as well. But it is necessary for the sentence imposed on that count to be re-examined, as it appears to have been designed to reflect the total criminality of the appellant on both counts. The case must therefore be remitted to the Court of Appeal for that purpose.

[3] The appellant was found guilty on the attempted sexual violation count on the following basis. The 15 year old complainant testified that the appellant had grabbed

1 After trial in the High Court at Auckland: CRI 2004-092-6552.
2 CA115/05, 132/05 18 July 2005, O’Regan, Chisholm and Salmon JJ.

his penis and tried to put it into her vagina. He said he would not let it go in. She tried doing it a couple of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading L v The Queen

Details

AGLC: L v The Queen [2006] NZSC 18
Case: [2006] NZSC 18
Decision Date: 30 March 2006

CaseChat Overview and Summary

L v The Queen was an appeal against convictions for sexual violation and attempted sexual violation. The Supreme Court allowed the appeal against the conviction for attempted sexual violation and dismissed the appeal against the conviction for sexual violation. The Supreme Court held that the conviction for attempted sexual violation should be set aside and that no re-trial should be ordered on that count. The conviction for sexual violation should stand but the sentence imposed on that count should be reviewed by the Court of Appeal in light of the setting aside of the conviction for attempted sexual violation. The Supreme Court found that the Judge’s directions to the jury on the topic of attempts were potentially confusing and incomplete and that there was a real risk of a miscarriage of justice. The Supreme Court held that the conviction for attempted sexual violation should be set aside because the jury could well have been left with the impression that a sufficiently proximate act was enough to constitute guilt of an attempt. The conviction for sexual violation should stand because there was no suggestion of a misdirection on the ingredients of the full offence and the difficulties the jury were having related solely to the attempt count.

Orders